Government and private policing

As we posted about previously, ORG was present at the most recent DCMS roundtable to discuss 'self-regulation' and copyright enforcement. We were given a fair chance to raise our concerns in that forum. We have not heard whether future meetings and discussions will continue to be as open.

A few weeks ago we asked the Department for Culture, Media and Sport for papers, minutes the attendee list from another meeting, hosted by both the Secretary of State Jeremy Hunt and the Minister Ed Vaizey MP, between copyright holders and search engines. This took place on 15th November, with a focus on how search engines might help tackle copyright infringement.

We've now received back the minutes from the meeting, which you can read here. We haven't received the proposals put forward at the meeting - and we have asked DCMS to explain why. We'll let you know the response.

'Self-regulation' is probably better described as private policing, because it involves companies making decisions about preventing users or other people behaving in certain ways or accessing certain information. The measures currently on the table involve blocking people from accessing to content, removing financial support for websites, or the manipulation of search results.

Our concern is that businesses policing the Internet will lead to deliberate or mistaken restrictions on access to and the distribution of information, with the wrong sites or content penalised and insufficient remedies when that happens. We are concerned that discussions involving only narrow interests, driven by proposals whose evidential basis is not examined, hosted by a Government considering itself only an observer, will not take account of the full range of citizen, consumer and creator interests.

From their response to our request, it certainly seems like the Government are not interrogating rights holders proposals very closely. We were told:

"The meeting, as demonstrated in the actions listed in the note, was focused on industry-led measures, and information is not held to establish the validity, consequences or relevance of these measures."

This helps to highlight the fundamental problem with the Government's position in the debate. Whilst claiming to simply be facilitating industry-led proposals, they can avoid having to defend, question, interrogate or widely consult on the proposals. But if the Ministers are demanding industry come to an agreement or face legislation, then there must be criteria against which they will judge the Internet companies' willingness to act.

One would presume this isn't just be the extent to which Internet companies manage to placate the trade bodies involved. So there must be a position on what would be the best outcome in public policy terms. The question is, what exactly are the Government looking for? How can they continue to avoid establishing the validity, consequences or relevance of the measures proposed? If they do have a position on what the best outcome is, why aren't they engaging in a proper, open policy making process in which all views are solicited and reconciled?

Whether it is search engines being asked to manipulate search results, advertisers and credit card companies severing ties to alleged infringing sites, or the blocking of access to websites, these are proposals that hand out the power to try to disrupt the free flow of information. This is fundamentally a freedom of expression issue.

It is worth pointing out that this problem is not restricted to these discussions. The City of London Police are already involved in a scheme with rightsholders and payment services to remove payment from sites allegedly involved in copyright infringement. We've tried to talk to the City of London Police about this, to see what kind of evidence they require and the due process involved. So far we have had no luck.

We hope that our involvement in the latest roundtable is an indication of an opening up of this process, and not a one-off gesture. With the Communications Act revision looming, 2012 should see them embrace appropriately open policy making. Especially as DCMS are, funnily enough, named in the new Cyber Security Strategy as the Department responsible for rights online.

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